Attorney General v JP Enterprises Ltd [2006] SBHC 20; HCSI-CC 193 of 2006 (21 June 2006)

HIGH COURT OF SOLOMON ISLANDS

ATTORNEY-GENERAL -v- JP ENTERPRISES LIMITED

High Court of Solomon Islands
(Brown, P.J)

Civil Case No. 193 of 2006

Date of Hearing: 21ST June 2006

Date of Ruling: 21ST June 2006

The Crown Solicitor Mr. Nathan Moshinsky QC with Rawcliffe Ziza for the Attorney-General
Mr. Philip Tegavota for the Defendant

RULING on the ATTORNEY-GENERAL’S APPLICATION FOR AN INTERIM INJUNCTION PENDING SUIT AND ON THE DEFENDANT’S APPLICATION FOR AN ADJOURNMENT.

Brown, J: This matter comes by way of summons by the Attorney-General on behalf of the Commissioner of Forests, the appropriate officer under the Forest Resources and Timber Utilisation Act (the "Act") to grant logging licences in terms of the Act. A prerequisite to the grant is a timber rights hearing in relation to the land which it is sought to make subject to logging. Here, the Commissioner says he was wrong to issue a logging licence affecting Lio Podokana and Nono customary lands for that no timber rights hearing had in fact been held.

As a consequence I granted an interim injunction, on the 2 June restraining the defendant from entering and carrying on further logging operations on the particular customary land.

Mr. Tegavota has entered a conditional appearance on behalf of the defendant and tells me today he seeks an adjournment so that landowners may file affidavits. He represents the logging company, however and he has not pointed to any material filed or to be relied upon by the company which goes to the issue of the timber rights hearing.

There may well be an argument about particular landowner rights over the parcels affected but the rights amongst those living or claiming to be entitled to usufructuary rights, rights of ownership or other rights stemming from custom is no business of this court. This court is concerned only with, in this ease, the fact that the Timber Rights hearing required by the legislation dealing with logging, (not custom between landowners) has prima facie on the evidence of the Commissioner of Forests, not been held. Nothing that Mr. Tegavota says or has filed today dispels that presumption.

The defendant company has had opportunity to address the principal issue, despite Mr. Tegavota’s argument, for he has had time and opportunity to file affidavits arguing about landowner issues. As I say, those arguments may be alluded in another place by the Council of Chiefs if it really relates to sharing royalties or boundaries of land or genealogy or status to claim, but this court has no jurisdiction to entertain these arguments which must be settled in custom.

The absence then of any defences in the face of the plaintiffs sworn material gives the plaintiff just cause to seek as it does to proceed to hearing today. I so order. I refuse the application to adjourn

RULING on the ATTORNEY-GENERAL’S SUMMONS SEEKING INTERIM INJUNCTION RESTRAINING THE DEFENDANT FROM ENTERING PARTICULAR CUSTOMARY LAND AND CONDUCTING LOGGING OPERATIONS AND ASSOCIATED ORDERS.

Brown, J: Mr. Moshinsky reiterates the argument he made when he came to seek this interim ex-parte order on 2 June stopping logging. This argument will not be repeated for you have the benefit of my ruling. The principle point of his argument is of course the conviction for fraud of one Leti Piko Bale, one of those mentioned in the Form 2 as entitled to grant logging rights over these parcels of land. When I have regard to the material relied upon by the Commissioner of Forests, I am satisfied he had reason to doubt whether or not a timber rights hearing necessary under the Act had been held. When I read the various affidavits and realise that the conviction of Leti Piko Bale relates to this issue I am left in no doubt that the Commissioner was correct in his assumption which caused him to revoke the licence.

I have read the material filled by Mr. Tegavota on the defendant company’s behalf and reference to one part, Mr. Skinner Rence’s affidavit at para (d) suffices to show that this argument is one for the Chief’s to settle. Skinner Rence, referring to a decision of this court in cc. 232/2003 made plain that this court made it clear that the boundary dispute must be determined by the Chiefs. And I might add, so should the difficulties which have arisen through the fact of the conviction of Leti Piko Bale of dishonesty, for that dishonesty is a breach of his trust towards these members of the group dependant upon him through custom.

The discretion whether or not to continue the injunction, rests on this court hearing regard to the questions posed for a court in that case, American Cyanamid relied upon by Muria CJ in Talasasa v AG (unreported judgment of 15 May 1995). Clearly I am in no doubt the matter is one where the public interest to support the Commissioners powers which he says were thwarted by the actions leading to the granting of the logging licence, out weights any other, for the argument amongst landowners does not take away from the fact that the Form II and III certificates were obtained by fraud or mistake. I am satisfied that the injunction should be continued in the manner suggested.

I make orders in terms of the Document "Draft Interlocutory orders" initialled by me today as amended by inserting in order (iii) "a High Court Trust Account entitled AG v JP Enterprises Ltd. cc 193 of 2006 Trust A/C".

THE COURT